May 23, 1950

PC

John George Diefenbaker

Progressive Conservative

Mr. J. G. Diefenbaker (Lake Centre):

Mr. Speaker, in rising to support the amendment moved by the leader of the opposition (Mr. Drew) may I say that the speeches which were delivered by the three hon. gentlemen who have preceded me indicate their interest in this subject. It is a continuing interest. The problem must be solved if democracy is to operate as it should.

As one looks back to the days when our constitution was being considered, it is of interest to note that the Senate originally was conceived on the basis of the legislative council of Canada, which was elective; that when the discussions took place at the time of confederation, or prior thereto, the only reason that the Senate became a nominated rather than elected chamber was that disputes arose among the members of the two conferences. These disputes arose out of the difficulties that

Senate Reform

the United States had found and which had culminated in the civil war. The debates of confederation days indicate that the final decision to provide for a nominated Senate was in consequence of the fact that the deliberations took place during the period of restoration and reconstruction immediately after the civil war.

The hon. member for Rosetown-Biggar (Mr. Coldwell) said it was unfortunate that this matter had not been brought before the house by the government. I agree with him entirely in that. Indeed I find it difficult to understand, having regard to the numerous occasions on which reform of the Senate has been declared to be of the essence of Liberal policy, that a measure of Senate reform has not long since been introduced. At the convention of the Liberal party in 1893 one of the outstanding resolutions passed dealt with the necessity of doing away with the archaic form of the Senate and bringing it up to date in accordance with the then concept of democratic government and of parliamentary institutions.

This is the only way in which the matter can be effectively brought before parliament by the opposition. If we were to bring it in, sir, through the medium of a private member's resolution you realize what would happen to such a resolution. Certainly no one would suggest that it would be intentionally talked out but that result would be achieved without much difficulty. The end would be that no consideration would be given to this most important matter.

Last fall a constitutional session was held wherein advances were made in our democratic form of government, and in bringing our political system up to date. The first time there was a general discussion regarding constitutional matters, particularly the necessity for reform of the Senate and the abolition of appeals to the privy council, was in the session of 1875, and the matter has been discussed on a number of occasions subsequently.

On March 1, 1875, Mr. Mills moved the following resolution:

That the house go into committee of the whole to consider the following resolution:

That the present mode of constituting the Senate is inconsistent with the federal principle in our system of government, makes the Senate alike independent of the people and the crown, and is in other material respects defective, and that our constitution ought to be so amended as to confer upon each province the power of selecting its own senators and to define the mode of their selection.

That resolution was debated at considerable length. Finally the house divided on it and it was carried by a vote of 77 to 74. After It was carried Mr. Mills was reported as saying in effect:

The house had committed itself to the principle that a change was desirable in the constitution of

tMr. Diefenbaker.]

the Senate-there could be no doubt about that proposition. The house had affirmed that the constitution of the Senate was inconsistent with the principle of our federal government, and some change should be made which would give to each province the appointment of its senators.

I am not accepting the suggestions then made, but I am pointing out that in the debates which took place the outstanding argument advanced was that the Senate was out of date and that it did not conform to the federal system of government, because appointment to membership was decided by nomination by the government. It is of interest to know that the debate has continued over the years. In 1921 Senate reform was part of the policy of the Liberal party. Reform of the Senate was of the essence of the election in 1925. I think in large measure that policy was the consequence of the debate which took place in 1923 in the house.

A motion was offered by Mr. Jean J. Denis, the then member for Joliette, and that motion appears at page 1364 of Hansard for March 21, 1923, in these words:

That, in the opinion of this house, it is expedient that a humble address be presented to His Majesty the King praying that the British North America Act be amended so as to provide that the members of the Senate instead of being summoned by the Governor General should be elected by the people for a term of six years in special senatorial divisions, the election for one-half thereof to take place every third year or should be elected for any other period of time or by any other mode of election as may be determined by parliament.

A most interesting debate followed in which various members of the house spoke. The speech by Mr. Denis needs no repetition. He placed on record the various events which had taken place leading up to the Senate being established in its present form. Then he finally arrived at this conclusion, which I believe is of interest to all hon. members, that there is no other self-governing British dominion that has a nominative Senate. The purport of his argument is that the experience since 1867 in Canada and in other parts of the commonwealth had indicated that a Senate appointed by a government in power did not discharge its responsibilities as effectively as it would if provision had been made either for election or for election in part and nomination in part.

Finally Mr. Fielding, a man of great experience in public life and a man who gave to his public service idealism that knew no party bounds over the years when he was premier of Nova Scotia, and following that as a member of the House of Commons, stated:

The original constitution of the Senate contemplated the recognition of provincial rights. It was taken for granted that it might be a danger to minorities and that the Senate might be needed for the protection of minorities.

Then he went on to say:

I agree that the constitution of the Senate today is not satisfactory. I do not join in any condemnation of the Senate. I think even as organized today it is capable of, and does, very good work. But unfortunately the distribution of our legislative work is such that we do not get the best out of the Senate.

This was said twenty-seven years ago.

For about a month after the Senate meets the chief business is to inquire what is on for the next day. There is nothing, and "Satan finds mischief for idle hands to do." Then, towards the end of the session the Senate is rushed and is not able to do properly the work for which it is specially designed; that is to say, the work of a revising body.

Then he proceeded:

I think it is desirable and expedient that we should have a second chamber, a chamber that should act as a brake-not a block-on the House of Commons; a chamber useful in many ways. I think a second chamber is useful and necessary in these days of so-called democracy, to guard against hasty legislation.

And his final opinion was expressed in this way:

I would appoint a senator for ten years. I would make him eligible for a second term, and retire him at, say eighty.

That was his suggestion, that there be appointment for a limited period of time. Others spoke in favour of election, while still others had in mind a system similar to that in effect in the United States where in fact the Senate is elected by the people and has been, as the leader of the opposition (Mr. Drew) has said, since 1913.

Debates on this subject have taken place on other occasions. The leader of the opposition has referred to the debates in the house in 1886. In the election of 1925, when reform was in the air, the former prime minister, Mr. King, promised to reform the Senate in order to make it an effective body to carry out the legislative responsibilities that devolve upon it. The means was that as appointments were made to the Senate those appointed would sign a declaration to the effect that they would join in their own reform. All of us felt through the years that those who had been appointed to the Senate had gone through that method of selfscreening, only to find about 1946 that the system had never been carried out or had never been brought into effect.

The experience since 1939 has shown that the Senate has had little or no opportunity to carry out its major responsibilities. Only a few pieces of legislation have originated there. Indeed in some sessions so little was the Senate used that the vast experience in parliamentary life which is available in that body was restricted in large measure to its divorce legislative functions. As far as other

Senate Reform

matters that came before it were concerned, they were too often to all intents and purposes perfunctory.

The result has been that over the years- this has accelerated in recent years-the people and even the Senators are asking what should be done in order to restore the Senate to a responsibility that it now does not discharge. I could quote various ministers of the crown who are now sitting in the seats of the mighty and who through the years have spoken of the necessity of reform. Only the other day the government leader in the other place spoke of the necessity of something being done. A recent appointee, Senator Stambaugh, made a speech in Alberta during the Easter holidays which indicated that after the few months he had been there his considered opinion was that something had to be done, that some definite consideration should be given to the necessity of reform in so far as the method of appointment and the discharge of a larger share of responsibility was concerned.

In 1925 Senate reform was mentioned in the speech from the throne. Then came 1926 and nothing more was heard about it. Reference to page 208 of Hansard of January 18, 1926, shows that Mr. Meighen spoke on that subject as follows:

I spoke some time ago of dear old friends who are missing and apparently gone forever, and amongst them none was more familiar, none more lamented than the figure of that great apparition known as Senate reform. Its death has been very recent, so perhaps we should speak of it with bated breath.

And he did. Then the late Mr. Lapointe followed and I quote from page 223 as follows:

My right hon. friend was most sarcastic when he referred to the reform of the Senate. Reform of the Senate! We have not changed our views about Senate reform from what they were last year. We said last year that the proposals of the government would be submitted to a conference of the provinces.

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?

Arthur Meighen

Mr. Meighen;

What are the proposals?

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LIB

Hugues Lapointe (Solicitor General of Canada)

Liberal

Mr. Lapointe:

The proposals which we will submit, and we expect that some of them, at least, will be accepted by the provinces. I contended then in the house, and I still submit that confederation was a pact among certain provinces and that you cannot alter that pact in any substantial feature without conferring with those who were parties to it..

Then he went on to say:

If my right hon. friend and my hon. friends opposite are kind enough not to put too many obstacles in our way, we will redeem their pledges as well as our own.

He was referring to a pledge to reform the Senate which had been given at one time at Halifax. The fact is that an appointed Senate is an anachronism in a democratic system. As far as I know in no other part of the commonwealth is there an appointed second chamber. Indeed in the countries that have set up constitutions within the last 25 or 30

Senate Reform

years an appointed second chamber has not been accepted. Having regard to the unanimous opinion of those sitting opposite over the years as to the need of this being done- I can find no dissenting voice from 1918 to 1930 and indeed some ministers now sitting opposite have been vociferous over the years in support of this proposal-surely we can expect some support to this motion which binds no one as to the form of the change that will be made. I read the terms:

It is expedient to appoint a joint committee of the Senate and the House of Commons to study suggested constitutional changes affecting the Senate-

Various suggestions have been made. Some have suggested that we should have a Senate which was in part elected and in part appointed. Others have suggested that we should have an elected Senate which was elected for a period of time with one-third retiring every one-third of the period. Another suggestion has been that appointment be maintained but limited to a period of years.

This resolution binds no one to actual terms. It places the responsibility in the hands of a committee. It gives that committee the power to gather evidence and to submit recommendations so that when the dominion-provincial conference meets this year the question may be placed before it. Among the matters that will be placed before the committee if set up are such things as the method by which the members of the Senate shall be chosen-their tenure of office-and the better functioning of the Senate in our parliamentary system.

Surely these are desirable aims. Is there any hon. member anywhere who does not believe-I include those in the other place- that changes must be made in order to make the second chamber one that will render outstanding public service and perform the parliamentary responsibilities that it does not have, an opportunity to perform now?

I quote from the motion:

-with a view to formulating proposals to be presented to the government for discussion at the forthcoming dominion-provincial constitutional conference. . . .

We believe in the right of the provinces to be consulted on this matter as on all constitutional changes. What better time could there be than now, when the Supreme Court of Canada has been made the final court of appeal? What better time than now, considering the situation that exists in various parts of the world where parliamentary institutions, because they ceased to operate efficiently, have ceased to exist? What better time than now for parliament to set up such a committee for the purpose of making our parliament more effective in the discharge of

its democratic responsibilities? What answer can there be on the part of the government? Their promises of the past call on them to support the amendment. At no time has there ever been a word of dissent by the Liberal party as to the necessity of something being done. Some may argue that the time is too short for the committee to function. There are three or four weeks remaining at the very least, and possibly more, during which such a committee could sit, and study the systems adopted in other countries, and be in a position to place before the government information that it in turn could bring before the dominion-provincial conference.

Surely no one can say, "Let us wait until next year". It was promised in 1921. In 1925 time was of the essence. It was said that unless something was done immediately serious consequences would follow. Indeed I remember well a speech made by Mr. King on election night in 1935, and the outstanding feature of it was that reform of the Senate would no longer be delayed by a majority of the other party in the Senate. That was 1935, fifteen years ago, and I make allowance for the days of war when such matters could not come up. During his term of office the Prime Minister (Mr. St. Laurent) has proceeded step by step to secure passage through the British parliament to provide for amendment of our constitution by ourselves in so far as federal matters are concerned, and has made the Supreme Court of Canada the final court of appeal in constitutional matters. Therefore is it not time, Mr. Speaker, that we join with members of the other place to build the most effective democracy we can under our parliamentary institutions? Reforms must come in the House of Commons, as we frequently advocate, and reform must also come in the other place. I ask members of the house irrespective of party to support the amendment to the end that the promises of the past and the protestations that have so often been made about the necessity of this being done may at least be carried one step forward in the effectuation of the desires of those on the other side of the house who have waited for so many years for the opportunity to do this very thing.

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LIB

Louis Stephen St-Laurent (Prime Minister; President of the Privy Council)

Liberal

Righi Hon. L. S. St. Laurent (Prime Minister):

Mr. Speaker, I do not intend at this time to discuss the merits of Senate reform. I have had no opportunity to conduct the research necessary for such learned historical statements as have been made in the house this afternoon. Of course the motion comes as quite a surprise at this time. No intimation of it was given. I am not complaining about that because no intimation has to be given of the matters the

opposition chooses to raise when a motion to go into supply is submitted by the government. Possibly if and when it ever happens that we are on the other side of the house we may be doing exactly what my distinguished friends have done on this occasion.

We have a motion to go into supply submitted by the government, and no matter how carefully or skilfully the leader of the opposition (Mr. Drew), and those who agree with him, may gild the pill of an amendment to the motion it is still a motion of want of confidence. They say that they hope the motion will receive support. It is always permissible to hope as long as there is life, and they hope that the government will be defeated. I submit to those who do not agree with them or share their hope that the opposition is not really serious in appealing to members on this side of the house, or in the upper half of the other side of the house, to support their motion.

It is an interesting motion, and we have heard interesting speeches made in support of it. The question of Senate reform is certainly one which is being given thought by a great many serious-minded Canadians who are interested in the Canadian constitution. I submit that first of all the amendment has the defect that it is a gilded attempt to secure a vote of the house which may mean the defeat of the government.

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PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

Mr. Speaker, on a question of privilege, I wish to make it perfectly clear that the intention of the amendment is not that of want of confidence. We would welcome government support of a motion which is consistent with their expressed views. It is not a want of confidence motion.

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LIB

Louis Stephen St-Laurent (Prime Minister; President of the Privy Council)

Liberal

Mr. SI. Laurent:

There is a place the road to which is paved with good intentions, but whatever be the intentions that lie behind the motion its constitutional effect would be the defeat of the government if it were successful.

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PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

Is that the place the Minister of Trade and Commerce (Mr. Howe) was speaking about?

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LIB

Louis Stephen St-Laurent (Prime Minister; President of the Privy Council)

Liberal

Mr. St. Laurent:

I am sorry I was not here when the leader of the opposition made his speech, but if I had been here I would have tried not to interrupt him. The other serious defect of the amendment is that it is an invitation to the house to have the government break faith with the representatives of the provincial governments participating in the dominion-provincial constitutional conference which is now adjourned. The conference was called for the sole purpose of bringing back to Canada the right to do in

Senate Reform

Canada the things which Canadian conditions may require in the form of amendments to the present constitution. It was that invitation which was accepted, and it was on that invitation that the conference met. I have had little time to refer to the report of the conference, but I would remind hon. members that the correspondence leading to the conference was tabled in the house and printed as appendices to various issues of Hansard of the last session of parliament. I have had time to look at some short references to the purpose of the conference which appear in the printed proceedings of the constitutional conference of federal and provincial governments held from January 10 to 12 inclusive, 1950. On page 6 I find this short paragraph in my opening statement:

The purpose of this conference is to seek together to devise a generally satisfactory method of transferring to authorities responsible to the people of Canada the jurisdiction which may have to be exercised, from time to time, to amend those fundamental parts of the constitution which are of concern alike to the federal and provincial authorities.

Turning to page 111 should like to read a short paragraph from the statement made by the gentleman who is now premier of Ontario. It is in these terms:

As I understand it, we have not been called here to discuss proposed amendments to the constitution but rather to examine whether we should have power in Canada to make amendments if the need should arise and by what method. Ontario is not here asking for anything, nor is it being asked to give anything away.

The one purpose is to consider and answer the two general questions which I have stated.

I have not had time to go through all the statements, but on page 17 there is a statement by the premier of Nova Scotia headed, "Purposes of Conference". It reads as follows:

This is to discuss the feasibility of devising a constitutional amendment which will enable subsequent amendments to be made in Canada without resort to the parliament of the United Kingdom; except as to matters already within the exclusive jurisdiction of the Canadian parliament, pursuant to the B.N.A. Act (No. 2) 1949, or of the provinces under section 92(1) of the act of 1867.

It is to be noted that what is to be considered is a general procedure for amendment and not the consideration of particular amendments. We are concerned here with methods, rather than with the substance of amendments.

I had time to turn up one more, which is in the opening address of the premier of New Brunswick, and is to be found on page 21:

This conference has been called to consider a method of amending the constitution in Canada. We who are taking part in it shall, if we attain this objective, have established another milestone in the march of our country towards the goal of full nationhood.

Senate Reform

As hon. members know it was agreed at the end of three days' deliberation that a continuing committee would be set up to which the provincial governments would submit their views or their memoranda concerning the procedure that might be established. The conference is to be reconvened for the purpose of considering the effect of the joint briefs or memoranda submitted by the ten Canadian provincial governments and the federal government. It is for that purpose, and that purpose alone. I submit that we would not be acting in the spirit in which this conference can best function if we made any change in the purpose and objectives of the conference without prior agreement of those who have participated in it thus far, and who have agreed on the agenda established for their continuing participation.

A third reason is that I think, until we get this procedure for amending our constitution in Canada, it would be premature to discuss a specific amendment and expect the parliament of the United Kingdom to make the kind of reforms to our Senate which would be satisfactory to the Canadian public. I believe it is preferable to arrange our affairs in such order that we can, in our own country, do the things that the experience of seventy-five years will demonstrate to be desirable for the amendment of this democratic machine, which is required for the co-ordination of the common efforts of the Canadian people towards their ultimate destiny. Of course, if we cannot agree on a method of doing in Canada ourselves, if we find we have not yet reached that state of adult citizenship where we can take the responsibility in our own assemblies for the doing of the things that are for the purposes of our Canadian people, then perhaps we can deal with other matters. If we cannot agree on how amendments generally may be made, perhaps we can agree to ask the mother of parliaments to make this kind of amendment for us. I hope that when we come to grapple with this serious problem of making the right kind of amendments to the constitution of our Senate, the method of appointment and tenure of office, we will have already done the other thing and have asserted that we can, in Canada, in spite of the fact that there are ten Canadian provinces, and that on all matters the mentality of the people and the attitude of those who represent them in their legislature are not identical, we are nevertheless broad enough Canadians to devise and operate a system whereby Canadians will be doing in Canada the things designed for the welfare of the future generations of Canadians.

Without being any less prudent than the nember for Lake Centre (Mr. Diefenbaker)

in respect of those quoted opinions he has today put upon Hansard, I think I can agree with him, and he would agree with me, that there are important considerations that require serious study to bring about a system which will not create again the anomalous situation, which once before existed in our history, that is to say a one-sided other house of parliament.

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PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

What did the Prime Minister mean by "once before"?

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?

Mr. Si. Laureni@

Once before there was an overwhelming majority of one party, and that was not the Liberal party. Today there is an overwhelming majority of appointees made by Liberal governments. That comes about when a government is, in the opinion of the majority of the Canadian people, so efficient that it remains in office a long time. It was that which created the previous situation. The people of that time, rightly or wrongly- I am not commenting on the merits-felt that the government they had from confederation down to 1873, and which they took back again in 1878 and kept until 1896, deserved their confidence. It happens that for the last fifteen years the people have felt that the party responsible for the government has maintained in office a government that deserves their confidence, and the traditional system has been for the government to make appointments of ladies or gentlemen from its own political party. This brings about an anomalous condition which I think is worthy of serious thought and study, to see whether we can have something that will be more generally representative of the complexion of political opinion throughout the country. I do not think that that would be hastened by supporting this motion. I invite all those who still have confidence in this government to vote against the motion.

At six o'clock the house took recess.

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AFTER RECESS The house resumed at eight o'clock.


INDUSTRIAL RELATIONS

AMENDMENT OF CHAPTER 54, STATUTES OF 194748 ENFORCEMENT REGULATIONS

CCF

Clarence Gillis

Co-operative Commonwealth Federation (C.C.F.)

Mr. Clarence Gillis (Cape Breton South) moved

the second reading of Bill No. 6, to amend the Industrial Relations and Disputes Investigation Act (enforcement).

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?

Some hon. Members:

Explain.

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CCF

Clarence Gillis

Co-operative Commonwealth Federation (C.C.F.)

Mr. Gillis:

It should hardly be necessary, Mr. Speaker, to explain this bill inasmuch as it has been introduced in this house on a

couple of occasions and had considerable discussion when the national labour code was first adopted in this house. This bill has for its purpose the replacement of sections 43, 44, 45 and 46 of the Industrial Relations and Disputes Investigation Act and briefly it means this.

Under the present arrangements the national labour relations board has neither power nor authority in industrial disputes except to call in the parties to the dispute, listen to the evidence, come to no conclusion, and then send both parties to the dispute back home to take strike action and fight it out in the streets. It is our conclusion that the day for that kind of thing has gone by; that the labour movement that comes under the jurisdiction of the national labour code has grown up and that they are in the administrative stage; and that it is time that we brought the rule of law within the legislation that has as its aim the regulation and supervision of disputes that occur from time to time between management and labour. Under the present code, when a dispute gets beyond the jurisdiction of the board, no other action is possible except to apply to the Minister of Labour (Mr. Mitchell) for the right to have the matter handled in the regular courts of law; and in our opinion it is the wrong place to try a labour dispute in a court of law before magistrates and judges who are trained in criminal law and the straight administration of civil law. Labour relations is an entirely different field, and in our opinion the proper people to determine the question as to whether or not an infraction of the law has been committed by one side or the other is the labour relations board. These men deal with the problem, they listen to the evidence, they know the labour code and its penalties, and they are in a better position to determine whether or not an infraction of the act has been committed by one side or the other.

This bill merely asks this parliament to place in the hands of the board the right to enforce their own legislation, just as is done now with regard to the Income Tax Act, the motor vehicles act and other acts that are in a specific field. They are enforced by the people who have jurisdiction under the act.

There is nothing new in this particular suggestion because we already have precedents in our own country. For example, a couple of years ago there was a dispute' in the province of Saskatchewan. That particular labour board took unto themselves the prerogative of deciding that John East Company in Regina was wrong in dismissing seven or eight employees. The board ordered their reinstatement, with full pay for the time they

Industrial Relations

were dismissed. They claimed they were wrongfully dismissed under the labour relations act that existed in that province. That matter went over to the privy council, and the privy council ruled at that time that the board had that right, and they exercised it at that time. Moreover, an act passed within the last couple of months in the province of Ontario has put in the Ontario labour relations act exactly the same provisions that we are asking in this bill to be extended to the national labour code.

The national labour code is applicable only to a small group of employees in this country; that is the group that come within the jurisdiction of the federal government, such as the national railways, the harbours board, the C.B.C. and shipping that is interprovincial. In view of the fact that the board has that limited jurisdiction in the field of labour, I think this is an opportune time to enact this bill and to give the national labour relations board some legal status. All the board will get under this bill is the right to determine that one side or the other has committed an infraction of the act. They assess the evidence. They place that evidence then in the hands of the magistrate who is charged with the enforcement of the act as it is. The magistrate hands down a decision in accordance with the penalties that are laid down now in the national labour code. If one side or the other is not satisfied, they then have the right of appeal. I submit, Mr. Speaker, that this house should adopt this bill at this time, and let us see how it works out; for I visualize the time when this national labour code is going to embrace all of the workers in this country. I think the time has now come when we should start experimenting at least with this kind of legislation so that we may have some knowledge of it.

I should just like to draw this fact to the attention of the house. We are in a rather precarious position in the field of labour in national strikes. For example, in the packing house strike here about two years ago, when that whole industry was tied up from coast to coast, nothing could be done about it. Each province has jurisdiction in the field. Your national labour relations board could not touch it. It did not come within the purview of the Minister of Labour (Mr. Mitchell). It was difficult to get the various provinces together to take some action. I think it is time that we began to think in terms of national legislation, in our own interests, so that we may have jurisdiction in the event of national emergencies developing.

I am not going to occupy any more of the time of the house, Mr. Speaker. I have briefly

Industrial Relations

set out the basic idea that the bill contains, and I am now going to leave it to the tender mercies of the house.

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LIB

Maurice Boisvert

Liberal

Mr. Maurice Boisvert (Nicolel-Yamaska):

Mr. Speaker, for the past quarter of a century a double trend has been noticeable in the evolution of law. On the one hand we observe a transfer of their power to apply the law from the courts of justice to other bodies. Commissions, boards, and sometimes administrators have thus been invested with judicial and semi-judicial powers. On the other hand, there has been a growing tendency to apply to collectivities the object of legislation which was originally meant for individuals. This last trend has been most evident mainly in the judicial relations between employers and employees, for example in collective agreements and in the Minimum Wages Act. The legislation does not concern individuals any more but groups.

The bill which is before the house, sponsored by the hon. member for Cape Breton South (Mr. Gillis), is another of those projects which would take away from courts, magistrates and judges the most important part of their functions, namely, that of hearing cases before passing sentences.

I am opposed to such incursions in the field of our judiciary system, one of the best in the world. Let us remember here- and 'I think this is admitted by all-that courts of justice and their procedure are the best protection we have for human rights and civil liberties.

The act which this bill would amend was assented to during the 1947-48 session and came into force on September 1, 1948. It seems to have worked very satisfactorily since then. The minister has given a broad and generous interpretation to its provisions, so that conflicts arising between employers and employees could be settled without necessarily imposing a fine on delinquents. It is a fact that, in'matters of public relations, the conciliation of disputes is the most effective way of maintaining good understanding between those who take part in the production, the transformation and the distribution of goods.

When different classes of society are called upon to co-operate, it is remarkable how much more a peaceful discussion, without recourse to the courts of justice, has helped the parties than a strict application of the provisions of the law. This was the opinion expressed by the Minister of Labour during the debate on the resolution introducing the act in 1947.

We have been told that the amendment is similar to legislation applied by some provinces and some other countries. If my information is correct, in Saskatchewan a provision somewhat like the one we are asked to adopt has given rise to numerous conflicts and litigation. In the United States, where the labour relations board has extensive powers, difficulties have arisen which have been far from improving good relations between employers and employees.

I think I may assert that since the act has come into force there have been few demands for court proceedings and most of the time those conflicts which arose have been settled on a friendly basis.

In order that a law may achieve its aim, it must be possible to apply sanctions against those who violate its provisions, otherwise the law will be useless.

Let us take a brief look at the act which we are asked to amend. It is chapter 54 of 11-12 George VI. This act is in two parts. The first part deals with the powers and duties of those who come under its application. The title of the act should be noticed: "An Act to provide for the Investigation, Conciliation and Settlement of Industrial Disputes". The act is under the administration of the Department of Labour, a labour relations board with powers specified under section 61 of the act. This is dealt with in the second part of the act. The powers of the board are of an inquiring nature. It has to see that the people under its jurisdiction come under the provisions of the act.

The intention of the legislature was that any offence against a provision of the act should be punished; and it is up to the tribunals to decide if there has been any violation and to punish accordingly. .

Sections 39 to 47 inclusive provide for appropriate penalties and indicate the manner in which court proceedings should be instituted so that the law may attain its end.

The wording of the title of the act clearly signifies that it provides not simply for investigation but also for the conciliation and settlement of industrial disputes. It is also stipulated that the minister will have power to appoint a conciliation board or conciliation officer in order to prevent a dispute from deteriorating into a lawsuit which would mean heavy fines for the parties and very often considerable costs.

The amendment would do away with? one, the jurisdiction of the minister in matters of conciliation and settlement; two, the jurisdiction of the conciliation boards appointed under the act; three, the jurisdiction of the conciliation officer appointed by the minister; four, the jurisdiction of the courts of

justice in charge of the application of the act in matters of violations of its provisions; all of such jurisdiction being turned over to the labour relations board, except as to sentences.

The sections of the act concerned with the proposed amendment are sections 43 to 47 inclusive. Here is a brief summary of the procedure contained in those sections.

If a complaint in writing is submitted to the minister by a party to collective bargaining, that the other party refuses to comply with the law, the minister may refer the case to the labour relations board which shall investigate and order what measures it will deem necessary. Every employer, employers' organization, trade union or other person in respect of whom such an order is given will be bound to comply with such order.

If a person claims that any of the provisions of the act have been violated and makes a complaint in writing to the minister, the minister may appoint an industrial inquiry commission or a conciliation officer to investigate and make a report to him in respect of the alleged violation of the act or of an order of the board which would be binding on both parties. It is only after such investigations that the minister may use his discretion. According to section 45, he does not have to act, but if it should become necessary to do so he must give his consent in writing for the prosecution. Offences must be prosecuted by summary conviction in accordance with part XV of the Criminal Code. Such offences are heard and sentences pronounced b>

judges or magistrates appointed by the province.

There can be an investigation conducted either by the inquiry commission or by the conciliation officer. After such an inquiry and following the report, the minister can still bring the parties to an understanding; and experience has shown that court proceedings have seldom been necessary. It should be noted that if the parties appear before a court of justice, a new inquiry will be conducted by the judge or the magistrate and it is only after that fines can be imposed. It goes without saying that according to part XV of the Criminal Code, there can be an appeal to a superior court.

The amendment would destroy the entire process of conciliation contained in the act and invest the labour relations board alone with the power to conduct an investigation and of issuing orders indicating that such and such a party is guilty of a violation of some provision of the act. Such order would then be filed in the magistrate's court of the jurisdiction in which the violation took place, and the magistrate would then impose the

Industrial Relations

penalties provided in the act without having any power to examine the merits of the order except that, in the case when the order "is ambiguous or its meaning not clear", he may refer it to the board for clarification.

In my opinion, the amendment, apparently harmless, ruins the whole economy of the act which must be above all an act for conciliation; and on this ground I am opposed to the amendment.

From a judicial point of view, the amendment is harmful because it attacks the separation of powers. It is revolting in law to ask a judge to pronounce a sentence without allowing him to become acquainted with the provisions of the law, hear the parties to the dispute and their witnesses, so that he may judge the merits of the case in which he must pronounce a sentence.

The contemplated amendment is equivalent to this. The labour relations board will say to the magistrate: "Such provision has been violated; please impose the penalty provided in sections 39 and following of the act". Such proceedings would be a blow to the proper functioning of our criminal law. Section 726 of the Criminal Code states as follows:

The justice, having heard what each party has to say, and the witnesses and evidence adduced, shall consider the whole matter and, unless otherwise provided, determine the same and convict or make an order against the defendant, or dismiss the information or complaint, as the case may be.

According to the amendment, the magistrate can only pronounce on the amount of the fine, say $5 to $250 as provided in the act. The only ground for appeal from such sentence by any party will be the inadequacy of the fine. There will be no appeal on the merits of the conviction.

It can be easily seen, then, that this amendment is a step back instead of a step forward. I should be very much surprised if in a country where justice is held in such high esteem, where everyone shows great confidence in our tribunals, we should find individuals, trade unions and employers who would be willing to see our tribunals hand out sentences as one hands out receipts.

The act had provided for a fair distribution of the powers of investigation and of conciliation, but did not define the powers of the tribunals which were to be called upon only as a last resort.

The act is broad and supple enough in its interpretation to allow an understanding to be reached in labour and industrial relations. It also provided that court proceedings should be instituted only after all other means of conciliation should have been tried. It did not define the powers of the tribunal as it expected

Industrial Relations

those powers to be exercised within the framework of those institutions which we respect and Which are the foundation of our democracy.

The protection of the individual rests upon the dealing of justice. This justice Should be dealt according to fixed rules in such a way that each party should be satisfied even if one should be fined.

I do not wish my words to be interpreted as an opposition to boards, commissions and administrators. But I am in favour of leaving untouched the fundamental jurisdictions of our courts of justice. The sabotage of the courts of justice is the beginning of anarchy in any country. We can see what is happening in countries under Russia's protection. The courts of justice simply carry out decisions taken beforehand by the government. If a conviction is needed following an order from the head of the state, the court simulates a trial and a conviction occurs in all cases. What hurts in others must be rejected at home.

Knowing the hon. member for Cape Breton South (Mr. Gillis), I am sure he did not intend to give this meaning to the proposed amendment. He thought it would simplify proceedings. He noticed particularly the powers of investigation mentioned in the act, forgetting that the primary aim of the act is the conciliation and settlement of industrial and labour disputes.

The tendency in the evolution of modern law to invest state organisms with judicial powers makes it easy, even in genuine good faith, to deviate from the important principle stated in section 7 of the declaration on human rights as follows:

Everyone has the right to have his criminal and civil liabilities and his rights determined without undue delay by a fair public trial and by a competent tribunal before which he has opportunity for a full hearing. The state has a duty to maintain adequate tribunals and procedures to make this right effective.

The hon. member for Winnipeg North Centre (Mr. Knowles) on May 16, 1947,

quoted before this house a declaration of the Manitoba civil liberties association in which it was said:

No Canadian citizen shall be denied justice as administered in the regularly constituted courts of law.

We have in the country remarkable judiciary institutions. We have competent and respectable justices. Canadian justice is highly respected by all Canadians and by all those outside the country who study our institutions. Why should we overthrow a system by having someone with the power to investigate and someone else with the power to

j

apply sanctions? The faith and confidence I have in our tribunals induces me also to oppose the amendment and I shall vote against the bill.

Topic:   INDUSTRIAL RELATIONS
Subtopic:   AMENDMENT OF CHAPTER 54, STATUTES OF 194748 ENFORCEMENT REGULATIONS
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PC

William Joseph Browne

Progressive Conservative

Mr. W. J. Browne (St. John's West):

I do

not intend to make a speech, but rise only to ask the hon. member who introduced the bill if he would answer a question in connection with something he said to the effect that the Ontario legislature had passed a bill this year. What bill was it?

Topic:   INDUSTRIAL RELATIONS
Subtopic:   AMENDMENT OF CHAPTER 54, STATUTES OF 194748 ENFORCEMENT REGULATIONS
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CCF

Clarence Gillis

Co-operative Commonwealth Federation (C.C.F.)

Mr. Gillis:

It is the provincial labour code which was passed, I believe, about two months ago.

Topic:   INDUSTRIAL RELATIONS
Subtopic:   AMENDMENT OF CHAPTER 54, STATUTES OF 194748 ENFORCEMENT REGULATIONS
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PC

William Joseph Browne

Progressive Conservative

Mr. Browne (St. John's West):

I have both of them here and I cannot find that provision in them.

Topic:   INDUSTRIAL RELATIONS
Subtopic:   AMENDMENT OF CHAPTER 54, STATUTES OF 194748 ENFORCEMENT REGULATIONS
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May 23, 1950